People v. Brisotti, BTP-11

• Decision Date: 15 November 1995
• Docket Number: BTP-11
• Citation: 635 N.Y.S.2d 442,167 Misc.2d 688
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Nicholas BRISOTTI, Defendant
• Court: New York City Court

Page 442

635 N.Y.S.2d 442

167 Misc.2d 688

The PEOPLE of the State of New York, Plaintiff, v. Nicholas BRISOTTI, Defendant.

Criminal Court of the City of New York Bronx County, BTP-11.

Nov. 15, 1995.

District Attorney of Bronx County, Robert T. Johnson (Kellie M. Stabile, of counsel), for plaintiff.

Marvin R. Raskin, Bronx, for defendant.

LAURA SAFER ESPINOZA, Judge.

The defendant is charged with Leaving the Scene of an Incident without Reporting, Vehicle and Traffic Law § 600(2)(a), a "B" misdemeanor. He moves for dismissal of the accusatory instrument on several grounds, including CPL 30.30 and 150.50, based on the People's failure to file an accusatory instrument on the return date of a Desk Appearance Ticket (hereinafter "DAT").

The defendant was issued a DAT on March 1, 1995. He appeared with retained counsel on the return date, May 23rd, and again on July 5th and August 24th. On each of these dates "the Police Desk" in Bronx Criminal Court gave him a new date to appear because no accusatory instrument had been filed. ¹ Subsequently, counsel contacted the District Attorney's Office requesting that the matter be marked "non-processed." The case was calendared on September 7th, an information was filed and the defendant was arraigned. The People answered ready and the case was adjourned on consent to September 19th. The defendant filed the instant motion on September 8th.

1. FACIAL INSUFFICIENCY

Initially, this Court rejects the defendant's contention that "if an accusatory instrument is not filed, the Desk Appearance Ticket is not sufficient on its face pursuant to CPL 100.40" since that statute applies only to informations. Nothing in the Criminal Procedure Law mandates the "dismissal" of a DAT, since it is not an accusatory instrument. See CPL 1.20(1). As this Court stated previously in People v. Henrique, NYLJ July 7, 1994, at 29, col. 4 (Crim.Ct., N.Y.Co.), there appears to be nothing to dismiss prior to the filing of an accusatory instrument. See also, People v. Fysekis, 164 Misc.2d 627, 625 N.Y.S.2d 861 (Crim.Ct., Bx.Co.1995); People v. D'Alessio, 134 Misc.2d 1005, 1009, 513 N.Y.S.2d 906 (Crim.Ct., Richmond Co.1986).

2. CPL 150.50

A DAT is no more than a notice to appear in court on a specific date regarding the alleged commission of a designated offense. CPL 1.20(26); 150.10. It is one of two statutory methods by which a defendant's appearance can be compelled prior to the commencement of a criminal action. CPL 110.10(2). Although CPL 150.50 explicitly requires the People to file an accusatory instrument on or before the return date of a DAT, the statute is silent as to the effect of late filing. This Court agrees with the courts in People v. Consolidated Edison Co., 161 Misc.2d 907, 615 N.Y.S.2d 978 (Crim.Ct., N.Y.Co.1994) (hereinafter "Con Ed III" ) and People v. Consolidated Edison Co., 159 Misc.2d 354, 604 N.Y.S.2d 482 (Crim.Ct., Qns.Co.1993) (hereinafter "Con Ed II" ) as to their finding that a DAT becomes a nullity when the People do not comply with CPL 150.50. See also, People v. Rodriguez, 90 Misc.2d 356 (Village Ct. of Rockville Centre, Nassau Co.1977) (defendant who appears before Court on DAT when no accusatory instrument filed and no officer present to charge him must be released and any bail posted returned to him). In this Court's opinion, however, this finding only means that subsequent appearances cannot be compelled by means of the nullified DAT. Furthermore, until an accusatory instrument is filed, a Court cannot issue a summons or warrant of arrest to compel a defendant's appearance. CPL 150.60; 110.10(1); 130.30; 120.20; People v. Fysekis, supra; People v. Henrique, supra; People v. Byfield, 131 Misc.2d 884, 502 N.Y.S.2d 346 (Crim.Ct., N.Y.Co.1986).

Despite the nullification of the DAT, however, there is nothing to prevent a defendant from appearing voluntarily on a future date or waiting until a proper accusatory instrument is filed and an arrest warrant or summons is issued. ² The means utilized to secure a defendant's appearance are irrelevant. Unlike in courts with jurisdiction over civil matters, criminal courts acquire personal jurisdiction once a defendant appears, regardless of how that presence is secured. People v. Dillin, 148 Misc.2d 311, 314-15, 560 N.Y.S.2d 940 (Crim.Ct., N.Y.Co.1990); People v. Gross, 148 Misc.2d 232, 239, 560 N.Y.S.2d 227 (Crim.Ct., N.Y.Co.1990); People v. MacFarlene Co., 130 Misc.2d 70, 71, 494 N.Y.S.2d 826 (Crim.Ct., N.Y.Co.1985). See also, People v. DiLorenzo, 149 Misc.2d 791, 795, 566 N.Y.S.2d 458 (Crim.Ct., Bx.Co.1990) ("Once the defendant appears, even if in response to an improperly served or defective ticket, the Criminal Court acquires jurisdiction over his person"). Thus, once the Court acquires personal jurisdiction over the defendant by alternative means, the nullification of the DAT has no practical effect since its purpose never went beyond compelling his or her presence on the original return date.

Under this reasoning there is no basis for dismissing on accusatory instrument simply because of a nullified DAT. Cf. Con Ed II, supra and Con Ed III, supra (dismissing accusatory instruments filed after DAT return date pursuant to CPL 150.50). There is nothing in CPL 150.50 to authorize such a dismissal. Nor is a failure to conform with CPL 150.50 one of the grounds enumerated in CPL 170.30 on which dismissal is authorized by statute. This Court therefore finds, as it did in People v. Henrique, supra, that dismissal for an untimely filing of an accusatory instrument is not an available remedy under CPL 150.50. Accord, People v. Kwan Han, 166 Misc.2d 246, 632 N.Y.S.2d 748 (Crim.Ct., Bx.Co.); People v. Fysekis, supra; People v. Consolidated Edison Co., NYLJ, July 15, 1994, at 27, col. 4 (Crim.Ct, N.Y.Co.) (hereinafter "Con Ed IV" ); People v. Consolidated Edison Co., 153 Misc.2d 595, 582 N.Y.S.2d 614 (Crim.Ct., N.Y.Co.1992) (hereinafter "Con Ed I" ). ³ Accordingly, the defendant's motion to dismiss pursuant to CPL 150.50 is HEREBY DENIED.

3. CPL 30.30

The People have 60 days to announce their readiness on a "B" misdemeanor. CPL 30.30(1)(c). It is the defendant's position that pursuant to CPL 30.30(5)(b) the action commenced when he came to the courthouse on May 23rd, the return date for the DAT. Under the People's interpretation of that statute, however, the speedy trial time only began to run on September 7th when the defendant first appeared before a judge and the accusatory instrument was filed.

CPL 30.30(5)(b) compels the computation of speedy trial time from the date the defendant "first appears in a local criminal court in response to the [desk appearance] ticket." People v. Parris, 79 N.Y.2d 69, 580 N.Y.S.2d 167, 588 N.E.2d 65 (1992). While this statutory language appears unambiguous, it requires interpretation in light of widespread procedures utilized for undocketed DATs whereby defendants are afforded no opportunity to appear before the judge presiding in the DAT courtroom. ⁴ Instead, these defendants are seen in another area of the courthouse by non-judicial personnel, usually court officers or Police Department employees, and given new dates to appear. These "adjournments" continue until an accusatory instrument is filed and the case docketed, at which point a defendant appears before a judge for the first time. (While this system of handling the large number of undocketed DATs may be expeditious, it is unclear under what authority these non-judicial personnel act. Clearly they have no statutory authority to adjourn proceedings or to compel a defendant's appearance in court.) ⁵ It is highly improbable that, in revising CPL 30.30(5)(b), the Legislature contemplated that multitudes of defendants would be prevented by such questionable administrative procedures from appearing before a judge on the DAT return date.

Two issues must be addressed in order to determine when the action at bar commenced. The first is whether CPL 30.30(5)(b) is an exception to the general statutory scheme that an accusatory instrument must be filed before any criminal action commences. The second is whether a defendant's "constructive" appearance in the courthouse in an attempt to respond to an undocketed DAT is sufficient to trigger CPL 30.30(5)(b). This Court holds in the affirmative as to both questions, despite the fact that this position seems at odds with the overall structure of the Criminal Procedure Law.

It is axiomatic that "[a]n action must commence before any speedy trial provisions become applicable." People v. Paige, 124 Misc.2d 118, 119, 475 N.Y.S.2d 762 (Crim.Ct., Bx.Co.1984); CPL 30.20(1). A strong argument can be made that no action can commence prior to the filing of an accusatory instrument. By statutory definition, a criminal action commences when an accusatory instrument is filed in a criminal court. CPL 1.20(16) & (17). It is the filing of the accusatory instrument that gives the court subject matter jurisdiction. People v. Coore, 149 Misc.2d 864, 566 N.Y.S.2d 992 (Yonkers City Ct.1991); People v. Gross, supra, at 240-41, 560 N.Y.S.2d 227; People v. Byfield, supra, at 885, 502 N.Y.S.2d 346. Since a DAT is not an accusatory instrument, "its issuance does not obviate the need for the filing of an accusatory instrument." People v. Fysekis, supra, at 629, 625 N.Y.S.2d 861. See, Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, CPL 150.50, at 692 ("Prior to the filing of [an accusatory instrument] the court has no jurisdiction to take any action with respect to the charge or the individual upon whom the ticket was served."); Preiser, Practice Commentaries, op. cit., CPL 150.10 at 678 ("An appearance ticket ... does not commence a criminal action. The only document that can ... is an accusatory instrument and an appearance ticket is not an accusatory instrument"). It therefore appears contradictory to deem the commencement of a "criminal action" on an undocketed DAT to occur in the...